North Carolina Judge Corrects Medical Malpractice Trial Error

162017_132140396847214_292624_nA Henderson County, North Carolina judge entered an order earlier this month that restored a North Carolina medical malpractice jury’s original calculation of noneconomic damages for a medical malpractice plaintiff in the amount of $516,161 that the jury had reduced to $1 due to a faulty jury instruction regarding the plaintiff’s duty to mitigate damages.

The plaintiff had undergone two cervical surgeries in 2000 and 2001 performed by the defendant neurosurgeon that left her in chronic pain and with other problems that she alleged were due to the defendant neurosurgeon’s medical negligence in a North Carolina medical malpractice lawsuit that she and her husband filed in 2003. The plaintiff had sought treatment from other neurosurgeons and physicians for her care and treatment following the second surgery but did not return to the defendant neurosurgeon for care after her second surgery.

The plaintiffs’ medical malpractice lawsuit was finally tried before a North Carolina medical malpractice jury during six weeks in the latter part of 2014 (the plaintiff had died at the age of 58 in September 2012). The medical malpractice jury had originally awarded the plaintiff $516,161 for pain and suffering but reduced its verdict to $1, finding that the plaintiff had failed to return to the defendant neurosurgeon after her second surgery and therefore had failed to mitigate her damages (the defendant neurosurgeon’s experts testified during the trial that the plaintiff had a duty to return specifically to the defendant neurosurgeon after her second surgery and that her failure to do so led to her worsening condition).

The judge determined earlier this month that the defendant’s experts’ testimony that the plaintiff had an obligation to return specifically to the defendant neurosurgeon for treatment was “inaccurate and misleading.” The judge further determined that the plaintiff’s decision to receive treatment from other neurosurgeons instead of the defendant neurosurgeon was “reasonable and all that could be expected,” and that the cumulative effect of the defendant neurosurgeon’s experts’ inaccurate and misleading testimony influenced the jury to reduce the award of damages for pain and suffering despite uncontroverted testimony and evidence that the plaintiff had experienced severe pain and suffering.

The judge determined that the instruction given to the jury at the conclusion of the trial that stated that the jury could lower its damages award if it found that the plaintiff had failed to avoid or minimize her injuries was prejudicial error (the mitigation of damages instruction should not have been given to the jury in light of the trial testimony and evidence), even though the attorneys for the parties had agreed upon the instruction.

The plaintiffs’ North Carolina medical malpractice lawyer represents 33 other former patients of the defendant neurosurgeon in pending medical malpractice cases in North Carolina.


If you may have been injured as a result of medical negligence in North Carolina or in another U.S. state, you should promptly seek the legal advice of a North Carolina medical malpractice attorney (or a medical malpractice attorney in your state) who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

Visit our website or call us toll-free in the United States at 800-295-3959 to find medical malpractice lawyers in North Carolina or malpractice lawyers in your state who may assist you.

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This entry was posted on Wednesday, March 18th, 2015 at 5:48 am. Both comments and pings are currently closed.


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